Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 65

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
M.R. SHAH, B.V. NAGARATHNA, JJ.
State of U.P. - Appellant
Versus
Veerpal & Anr. - Respondents
Criminal Appeal No. 34 of 2022
Decided on : 01-02-2022

Advocates appeared:
For the Appellant(s) : Ms. Garima Prashad, Sr. Adv./AAG Mr. Vishnu Shankar Jain, AOR
For the Respondent(s): Mr. P. S. Khurana, Adv. Mr. Vibhuti Sushant Gupta, Adv. Mr. Narender Kumar Verma, AOR

IMPORTANT POINTS
(1) Merely because there are two/multiple dying declarations, all dying declarations are not to be rejected.
(2) There is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without corroboration.

Headnote:
(A) Indian Evidence Act, 1872 – Section 32(1) – Dying declarations – Merely because there are two/multiple dying declarations, all dying declarations are not to be rejected – When there are multiple dying declarations case must be decided on facts of each case and court will not be relieved of its duty to carefully examine entirety of material on record as also circumstances surrounding making of different dying declarations – There is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without corroboration – If Court is satisfied that dying declaration is true and voluntary it can base its conviction on it, without corroboration. (Paras 9.1.2 and 10.1)
(B) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Acquittal by High Court mainly on the ground that there were two dying declarations – High Court as such has not doubted credibility of dying declaration recorded by Magistrate/SDM on the ground of malice – Reasoning given by High Court to not rely upon dying declaration recorded by Magistrate/SDM is not germane and cannot be accepted – If statement of deceased in first dying declaration that she locked door from inside and out of anger she poured kerosene is accepted, in that case it is not explained by accused as to how she was taken to hospital, as nothing is on record that door was broken/opened by father-in-law-accused and thereafter she was taken to hospital – If she had committed suicide by pouring kerosene there would have been injuries on chest as well as injuries would not have been on head and on backside – Such injuries as found on body of deceased could have been possible only if somebody had poured kerosene on her from behind her – Even in the statement recorded under Section 161 of Cr.P.C, deceased has stated that her father-in-law had attacked her with a stick with an intention to kill her and as a result, she locked herself in room and set herself ablaze – Medical evidence is consistent with dying declaration – There was no reason for High Court to disregard dying declaration of deceased – Impugned judgment and order acquitting accused for offences punishable under Section 302 read with Section 34 of IPC quashed and set aside – Judgment and order passed by Trial Court convicting accused for offences punishable under Section 302 read with Section 34 of IPC hereby restored – Respondent Nos. 1 & 2-original accused held guilty for offences punishable under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life and fine of Rs.10,000/- each as awarded by Trial Court. (Paras 10, 10.2 and 12)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.05.2020 passed by Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No. 4658 of 2015 by which the High Court has allowed the said appeal preferred by respondents herein – original accused and has acquitted accused for the offences under Section 302 read with
Section 34 of the IPC, the State has preferred the present appeal.
Findings of Court:
Impugned judgment and order passed by High Court acquitting the accused for the offences punishable under Section 302 read with Section 34 of IPC is unsustainable and the same deserves to be quashed and set aside.
Result : Appeal allowed.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.05.2020 passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No. 4658 of 2015 by which the High Court has allowed the said appeal preferred by the respondents herein - original accused and has acquitted the accused for the offences under Section 302 read with Section 34 of the IPC, the State has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 That PW1 Bengali Babu gave the First Information Report which was registered as Crime No.1144/11 initially for the offences under Section 326 of the IPC to the effect that on 20.12.2011 at about 2:30 pm, he got a call from Radha - daughter of the deceased that her mother had got burnt. He immediately reached the hospital and at that time SDM was taking the deceased’s statement. According to him, the girl told that her father-in-law and mother-in-law demanded the money and when she refused there was an assault and thereafter they poured kerosene over her and with a burning matchstick burnt her. The Investigating Officer started the investigation. He recorded the statements of the relevant witnesses and collected the necessary evidence including the medical evidence. After completion of investigation, Investigating Officer filed the chargesheet against the accused for the offences under Section 302 read with Section 34 of the IPC. The learned Trial Court framed the charge against the accused for the aforesaid offences. The accused denied the charge and pleaded not guilty. Therefore, they claimed to be tried by the Trial Court for the aforesaid offences.

2.2 To prove the charge against the accused, the prosecution examined as many as 10 witnesses. PW5 turned hostile. The prosecution also brought on record documentary evidences including two dying declarations, one recorded by the police officer and another, recorded by the Magistrate/SDM. On appreciation of evidence and considering two dying declarations, the learned Trial Court believed the dying declaration recorded by the Magistrate on 22.12.2011 and further observed that the defence put forth on behalf of the accused that the deceased herself poured the kerosene on her is not believable considering the medical evidence on record. Thereafter the learned Trial Court convicted the accused for the offences under Section 302 read with Section 34 of the IPC and sentenced the accused to undergo life imprisonment.

3. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the Trial Court, the accused preferred the appeal before the High Court being Criminal Appeal No.4658/2015. By the impugned judgment and order, the High Court has acquitted the accused mainly on the ground that there were two dying declarations, one recorded on 20.12.2011 and another recorded on 22.12.2011 and there was a gap of two days between the two dying declarations. The High Court instead of relying on the dying declaration recorded by SDM/Deputy Commissioner of Agra and by disbelieving both the dying declarations has acquitted the accused by observing that according to the deceased when she was forced to give the money and when she refused, the accused tried to assault and she ran away and under the pressure she might have poured the kerosene on her.

4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, acquitting the accused for the offences under Section 302 read with Section 34 of the IPC, the State has preferred the present appeal.

5. Ms. Garima Prashad, learned Senior Advocate appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in acquitting the accused for the serious offences under Section 302 read with Section 34 of the IPC.

5.1 It is further submitted by the learned Senior Advocate a